Thinking through Oduahgate
October 28, 2013 by Eze Onyekpere
The car purchase scandal involving the Minister of Aviation, Stella Oduah and the Nigerian Civil Aviation Authority, now known as Oduahgate, reveals the centrality of procurement proceedings in aiding or abetting corruption in Nigeria and indeed, in any part of the world. Except in autocratic regimes, no leader will dip his hands into the treasury and directly withdraw money for his personal use. There must be a reason, which most times is authorised by law, that will provide the opportunity and leeway for public officials to get money out of the treasury for eventual mismanagement. It is the contention of this discourse that the level of economic growth and development in any given society (besides the availability of resources) is directly proportional and related to the level of maturity of its procurement policy and how the policy responds to the challenges facing the society. The Oduahgate, therefore, provides an ample opportunity for Nigerians, particularly active civil society activists and professionals to respond to two challenges.
The first challenge arises from the provisions of Section 19 (b) of the Public Procurement Act 2007. This challenge is based on the fact that the Oduah pleaded that a non-governmental organisation monitored the bid opening and even commended the process. S.19 (b) of the PPA states as follows: Subject to regulations as may from time to time be made by the Bureau under direction of Council, a procuring entity shall, in implementing its procurement plans: (b) invite two credible persons as observers in every procurement process, one person each representing a recognized: (i) private sector professional organisation whose expertise is relevant to the particular goods or service being procured, and (ii) non-governmental organisation working in transparency, accountability and anti-corruption areas, and the observers shall not intervene in the procurement process but shall have right to submit their observation report to any relevant agency or body including their own organisations or associations.
According to the regulations made by the Bureau of Public Procurement, invitations come to professionals and NGOs when bids are being opened and beyond that, professionals and NGOs are not allowed to observe any other part of the process. The sub-poser is; what is the interpretation given to the words “procurement process” in Section 19 (b) by the BPP? The PPA did not define “procurement process” but it defined the word “procurement” and “procurement proceeding”. By the provisions of the interpretative Section 60 of the PPA, procurement means acquisition. Thus, this would contextually mean the acquisition of goods, works and services as stipulated in the annual budget by procuring entities. Procurement proceedings have been defined in the PPA to mean the initiation of the process of effecting a procurement up to award of a procurement contract. The Blacks Law Dictionary defines “process” as a mode, method or operation whereby a result is produced; a series of actions, motions or occurrences; progressive act or transactions, etc. In view of these definitions, the PPA has permitted professionals and NGOs to observe the procurement process which means the entire proceedings plus execution, indeed everything about public procurement. The current restriction by the BPP is not even to the entire procurement proceedings but a tiny portion of the procurement proceedings.
However, merely observing a bid opening process without observing the examination and evaluation of bids and the process leading to the final decision on the choice of the contractor or service provider adds little or nothing to the transparency of the process. The insistence by the BPP in the limited and restrictive interpretation of Section (19 (b) which is very clear, unequivocal and devoid of controversy may have allowed this manipulation by the NCAA. If it is important to have professionals and NGOs to give credibility to the process, then they should be allowed to be part of the process, not just the formality of it. The most reasonable thing is to allow NGOs and professionals to observe the proceedings from conception to the award of contract in accordance with the letter and spirit of the law. Pray, do MDAs and the BPP have something to hide? Why are they afraid of allowing proper observation of the procurement process?
Experience garnered in observing bid openings indicates that the MDAs simply invite NGOs and professional groups as an afterthought or at the last minute. Averagely, invitations get to NGOs with less than five days to the bid opening. Sometimes, a day to the bid opening session and in other times, ridiculously a text message is sent some hours to the bid opening session for an NGO to attend and observe a bid opening. It is therefore time to think through the construction of section 19 (b) or an amendment of the PPA to state it in black and white that NGOs and professionals be allowed to monitor the entire proceedings. This kind of scandal would have been forestalled by the report of a credible professional or NGO at the very early stage. If any professional conceals such scandal, then he would open up himself to charges of unprofessional conduct by the disciplinary committee of the profession. Any NGO operative who conceals this kind of scandal would also be open to the charge of conspiracy and as principal offender in the crime.
The second challenge is for Nigerians to respond to the poser: How do we sustain the struggle for accountability and transparency beyond the volatility of getting angry and enraged for two weeks before another scandal overtakes the current one? This is not the first time that Nigerians have demonstrated anger and rage over the mismanagement of public resources. In the event President Goodluck Jonathan decides not to sack the minister of aviation, what is the next line of action by those of us shouting to the high heavens? If the probe panel set up by the President returns a no-guilty verdict, how do we react? Until we are able to sustain the struggle beyond a number of weeks, all that will happen is to allow anger to boil over and nothing will come out of it. Where are the those who got away with billions from the fuel subsidy scam? Where is Abdulrasheed Maina who was alleged to have embezzled billions of naira from the pension funds? It is therefore time for the civil society including the leading lights of professional groups to think through a strategy of action to send effective and unequivocal messages to criminals parading the corridors of power and feigning to be leaders. Joining the rot through defending the indefensible using ethnic and religious prisms will only encourage crime and impunity.
If the governance system comprising the three arms of government namely, the executive, legislature and judiciary, cannot work in concert to ensure social justice and equity for Nigerians and ensure that criminals are sent to jail and stolen money returned for public use; not just a soft landing for looters of the treasury, then this country is doomed. The government is declaring that a revolution is the only cure for the ills which they have compounded. For the civil society including the professionals, we must act in concert to rescue this nation from the present rot. We can no longer pretend that things will change on their own. We must present a common front against corruption, which is the nation’s common enemy.
•Follow me @censoj
Sources: CSJ mailing list